The Supreme Court’s Shockingly Effective Tactic for Having Toxic Opinions Ignored

This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)

The Supreme Court’s conservative justices have delivered seismic shocks to the legal system in recent days. In Trump v. United States, they remade the structure of the American government to shield Donald Trump from prosecution. And in Loper Bright Enterprises v. Raimondo, they overturned Chevron v. Natural Resources Defense Council, a 40-year-old precedent that gave federal agencies leeway to interpret ambiguous statutes. These attention-grabbing decisions have upended the bedrock of modern constitutional and administrative law.

Trump and Loper Bright are the latest high-profile rulings in which the conservatives have unabashedly smashed long-standing precedent and practice over the dissents of the liberals. You’ve heard about many of them. They include Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade to eliminate the right to abortion; Janus v. AFSCME, which overturned Abood v. Detroit Board of Education to weaken public-sector unions; and Citizens United v. FEC, which overturned two precedents to gut America’s campaign finance regulations.

Explicit overrulings capture the public imagination. Yet they are exceptions to the more common—and insidious—method the court’s conservatives typically employ to move the law rightward. Instead of openly overturning precedent in large, fast moves, the Roberts court has more frequently turned to “stealth reversals,” effectively rejecting previous rulings without acknowledging what it has done. This tactic allows the conservatives to advance their ideological agenda while obscuring the full extent and speed of their politicized reconstruction of national law.

In short: The court’s conservatives are overturning precedent at a far greater clip than you realize. And that’s by design. At a time when their hard-right jurisprudence has tanked the court’s public standing, stealth reversals help conserve the institution’s dwindling legitimacy and temper backlash.

Consider a case decided the same day as Loper Bright. In City of Grants Pass v. Johnson, the court’s conservatives held that laws criminalizing homeless people who have no access to shelter for sleeping outside do not violate the Eighth Amendment’s bar on “cruel and unusual” punishment.

Like Loper Bright, Grants Pass lined up along ideological lines, with the six Republican appointees in the majority over the Democratic appointees’ dissent. Unlike Loper Bright, Grants Pass is a quintessential stealth reversal, practically nullifying a precedent decided two decades before Chevron, Robinson v. California.

Robinson held that the Eighth Amendment’s “cruel and unusual punishment” clause forbids the government from punishing people for living with a status. In striking down a California law that criminalized the “status of narcotic addiction,” the Robinson court held that the criminal punishment of status—like being “mentally ill, or a leper, or [being] afflicted with a venereal disease”—“would doubtless be universally thought to be an infliction of cruel and unusual punishment.”

If Robinson means anything, it should bar criminalizing homeless people for their mere existence. Surprisingly, this point was made by Justice Samuel Alito during oral arguments. Invoking Robinson, he told the lawyer defending the criminalization of homeless people for sleeping outside that “the connection between drug addiction and drug usage is more tenuous than the connection between absolute homelessness and sleeping outside.” This is because sleeping is a biological and physiological necessity.

The Grants Pass majority opinion that Alito joined claims that it does not “reconsider” Robinson. But it forcefully attacks it, arguing that the earlier case was “unprecedented” and “sits uneasily with the [Eighth] Amendment’s terms, original meaning, and our precedents.” Ignoring Robinson’s substantive holding, the majority opinion concludes that Robinson lacks “persuasive force.” And instead of applying Robinson, the majority opinion repeatedly cites, quotes, and praises Justice Byron White’s dissent in the case—the very opinion the Robinson court had repudiated. Grants Pass doesn’t say the talismanic word overruled—in fact, it denies that this is what’s being done—but that’s precisely what it did to Robinson’s binding authority.

Stealth reversals like Grants Pass come with real costs. By allowing the conservative justices to claim they are merely applying the law when they are actually subverting it, they bolster an unjustified public narrative that they are adjudicating not in a historically unusual, aggressive, and partisan manner. Decisions that transform the law masquerade as organic developments in jurisprudence, concealing the sharp pivots brought about by Trump-era appointments of conservative movement actors to the bench.

This, in turn, makes it harder for the public, the media, and even legal experts to track the court’s rapid rightward shift. In the long run, this cynical distortion of feedback loops suppresses the ongoing democratic dialogue between the court and the public that shapes constitutional law.

By contrast, when the court explicitly overturns precedent, it provides a clear signal that major doctrinal shifts are underway. Overrulings like Loper Bright shape journalistic narratives about the pace of jurisprudential shifts and connect judicial change to new appointments. They alert the public to the potential capture and corruption of the court’s process of legal decisionmaking. Moreover, they can be galvanizing to critics, fueling movements that seek to mitigate individual decisions and challenge the court’s institutional assertions of power.

Contrast the same-day coverage of Grants Pass and Loper Bright. No mainstream report on Grants Pass noted the overruling or the diminishment of precedent. The New York Times’ account didn’t even mention Robinson (and neither did most others). Conversely, the convulsive rupture of ditching Chevron broke through the cacophony. The Times’ report explained the “foundational 1984 decision” in depth and framed the conservative justices’ overruling with reference to the explicit overrulings “on abortion in 2022, on affirmative action in 2023 and now on the power of administrative agencies” precipitated by Trump’s appointments.

Every year, only a few court cases achieve broad visibility. Explicitly overturning precedent can help rulings penetrate public discourse. People magazine, for example, ran an article covering Loper Bright (headlined “Supreme Court Overturns 40-Year Precedent You Didn’t Know Existed”) that centered the act of overturning to explain what had happened. Such coverage gives nonlawyers an accessible frame to understand and discuss legal change that requires no technical knowledge of specialized fields of law. Barbra Streisand, often featured in People, tweeted after Loper Bright that the “Supreme Court overruled 40 years of precedent and overturned the Chevron decision.”

Imagine if the court had stealthily overturned Chevron, hollowing out the precedent while paying lip service to it. The practical consequence for legal doctrine could have been like Loper Bright’s. But would this complicated administrative law case have made the pages of People? And would it have gotten the Streisand boost? Likely not. A stealth reversal of Chevron would have deprived the court’s critics of catalysts for public attention that can build democratic mitigation and resistance.

The Roberts court’s stealth reversals take many forms. In a forthcoming law review article, I’ve offered a typology of seven different constructions, but there are surely more. And they aren’t limited to a single area of the law. Through stealth reversals, the Roberts court has undercut liberal precedents on criminal procedure, the separation of church and state, workers’ and immigrants’ rights, the right to sue the government for damages, and capital punishment, among others. Despite their different shapes and subjects, they all share a commonality: managing public perception of the rate of judicial change to mitigate backlash.

Expect more stealth reversals in the year to come. Explicitly overruling Roe v. Wade, to quote political scientist James Gibson, has “produced the greatest lost legitimacy social scientists have ever documented” for the Supreme Court as an institution. And 7 out of 10 Americans, according to an Associated Press poll released last week, say the justices are putting ideology over impartiality. In this climate, stealth reversals are a strategic necessity to impose unpopular legal change.

Just this term, we saw the conservative justices unapologetically assert their power in ways that vindicate this public perception. The most obvious examples come in the Trump and Loper Bright cases. But over the dissents of the three Democratic appointees, the Republican appointees also struck down a lifesaving ban on bump stocks; let South Carolina keep using a discriminatory congressional map that disenfranchises Black voters; enfeebled a federal statute guarding against corruption in government; curbed the enforcement power of financial regulators and other agencies in two cases besides Loper Bright; and issued an emergency stay against clean air protections that shield millions of people from a dangerous pollutant.

It’s this stealthy but unrelenting erosion of precedent that most immediately reshapes the fabric of American law. As the conservatives continue this reactionary march, many of their most consequential changes come not with a bang but with a judicial sleight of hand.